Opinion

Succession of Simms

  • 250 La. 177
  • 195 So. 2d 114
  • 26 Oil & Gas Rep. 24
  • 1966 La. LEXIS 2040
Court
Supreme Court of Louisiana
Filed
Nov 7, 1966
Status
Published
Author
Hawthorne
On the bench
Fournet, Hamiter, Hawthorne, McCaleb, Hamlin, Sanders
Cited by
31 cases
Authority
More cited than 7.7%

The opinion

HAWTHORNE, Judge,

Concurring in the refusal to grant a second rehearing.

I concurred in the decree in this case on first rehearing because I could not distinguish the case of Succession of Guillory, 232 La. 213 , 94 So.2d 38 , from this one, and I considered that, under the holding of this court in that case, the trust provisions of the will in the instant case contained prohibited substitutions which are nullities in contravention of the public policy of this state and that the dispositions must fall in their entirety under Article 1520 of the Civil Code. The contention is made on application for a second rehearing, however, that our holding in Guillory is inconsistent with the public policy of this state in regard to trust estates as expressed in our Constitution, Section 16, Article 4, as amended by Act 208 of 1952, and the 1938 Trust Estates Law, Act 81 of 1938, former R.S. 9:1791 et seq., and is therefore unsound and ought to be overruled. I agree with this contention, and I am willing to grant a second rehearing for the purpose of overruling Guillory because I consider it unsound and do not regard the trust provisions of the instant will as containing prohibited substitutions. It would be a vain and useless thing to grant a second rehearing, however, since I cannot get a majority of the court to agree with me that the Guillory case should be overruled, and because as long as the Guillory case stands, the trust provisions of this will contain prohibited substitutions. Under these circumstances I have voted to deny a second rehearing because I do not consider that the trust provisions can be upheld except by overruling Guillory, and I am unwilling to prolong this litigation when it is obvious that only the same result can be reached by another hearing of the case.

HAMITER, J., dissents — being of the opinion that the exception of no right of action is good.

SANDERS, J., is of the opinion that a rehearing should be granted.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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